Timeliness of amended motion measured from the first motionFebruary 27, 2018
Healthy Way Acupuncture, P.C. v 21st Century Indem. Ins. Co., 2017 NY Slip Op 50204(U)(App. Term 2d Dept, 2017)
“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible set forth in the insurance policy in question, it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff opposed the motion, arguing that defendant’s motion was untimely pursuant to CPLR 3212 (a), that defendant had not properly applied the fee schedule, and that defendant had failed to show that a deductible was applicable since the copy of the automobile insurance policy included in the moving papers contains an out-of-state certification. By order entered January 22, 2015, the Civil Court granted defendant’s motion.
It is uncontroverted that defendant served plaintiff with its original motion for summary judgment dismissing the complaint on April 14, 2014, which was within 120 days of the filing of the notice of trial on December 13, 2013. However, the Clerk of the Kings County Civil Court did not accept the filing of the motion because the notice of motion contained an incorrect address for the court. Thereafter, in May 2014, defendant filed a second, otherwise identical, motion for summary judgment dismissing the complaint, which set forth the correct address for the Civil Court. “It does not follow from the fact that this single motion had been served . . . on two separate occasions that its timeliness must be judged by the later . . . rather than the earlier . . . date of service. The mere fact that the defendant, after having served its original notice of motion on the plaintiff’s attorney in a timely fashion, filed new motion papers seeking the same relief, [was] not fatal to [such motion]” (Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 562, 817 N.Y.S.2d 293  [internal quotation marks and citations omitted]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant’s second motion for summary judgment dismissing the complaint was not untimely.”
I thought I published this twice. It is a very useful case. Put this in your pocket for the instance where your motion has defects, you need to amend it and 120-days has elapsed since the NOT was filed.